Excerpt:.....which required deliberation for a number of days. a reservation to the effect that in such cases there can be no objection to the consent on the ground of want of independent exercise of judgment is clearly made in the judgment in subramaniam v. venkamma (1903) 26 mad 627 .further these two sapindas distinctly say that they gave their consent because they thought that the adoption was a proper act and d. this was expressed in strong terms by jackson, j. but in the view that we have taken that the plaintiff's suit must fail, and as we are told that there is another litigation pending in the lower court between the adopted son and defendants 1 to 3, we think it unnecessary to express any opinion upon these questions......if an adoption is regarded as a form of birth, the logical conclusion would seem to be that the widow's motive in making an adoption is no more material than a wife's motive in having a baby. the learned judge however thought that some of the decisions of this court tended the other way; but there could hardly be much force in that argument after the decision of the privy council.8. taking it however that a proved case of a corrupt bargain or a conspiracy between the widow and the consenting sapinda may be a sufficient justification for invalidating an adoption, we see no such proof of corruption or conspiracy in the present case. it has been pressed upon us that the widow did not think of making an adoption between 1886 and 1925. that is accounted for by the fact that she had a.....

Judgment:

Varadachariar, J.

1. This is an appeal by a reversioner, who sued to recover possession of the estate of one Ananthayya. The last male owner died in 1886, leaving a widow and a daughter. The widow died in October 1925 and as the daughter and a son born to the daughter had predeceased the widow, the plaintiff filed this suit in January 1927, claiming to recover possession of the properties alleged to belong to the estate. Several sets of defendants were impleaded in the suit and various questions were raised by the different sets of defendants. For the purpose of this appeal, it is sufficient to deal with the one question raised by defendant 47, who claims to have been adopted to Ananayya by his widow on 10th June 1925. There is scarcely any dispute before us either as to the truth of the relationship alleged by the plaintiff or as to the factum of the adoption of defendant 47. The only question argued before us is as to the validity of the adoption.

2. The adopted son relies upon the consent given by a nephew, of the plaintiff (D. W. 7 in the case) and one Chalamiah (D. W. 2) who is also a more distant reversioner than the plaintiff. Their consent is evidenced by Ex. 11. Though some suggestions have been made that their consent was given for improper reasons or at any rate was not the result of the exercise of an independent discretion, we see no reason for taking this argument seriously. No corrupt motive has been proved beyond a suggestion that they very readily consented when they came to the village on 9th June, the date on which Ex. 11 was given. Their evidence is that they had been previously spoken to about the matter; but, even putting that aside, there can be no doubt that they were well aware of the circumstances of the family and there was no very intricate problem which required deliberation for a number of days.

3. The consent under Ex. 11 could not be invalidated on that account. There is equally little force in the argument that in giving consent under Ex. 11 these two sapindas must have been under the impression that the plaintiff had already consented and that therefore it was not the result of an independent discretion. Ex. 11 does not recite any consent by the plaintiff. Their statements from the witness-box are to the effect that to their very knowledge the plaintiff orally agreed. This may be true or may not be true, but on the strength of that statement it is obvious there could be no question of any misrepresentation to them by the widow or of their having acted on the faith of that representation. A reservation to the effect that in such cases there can be no objection to the consent on the ground of want of independent exercise of judgment is clearly made in the judgment in Subramaniam v. Venkamma (1903) 26 Mad 627 . Further these two sapindas distinctly say that they gave their consent because they thought that the adoption was a proper act and D. W. 7 goes the length of saying that he would have given his consent whether the plaintiff had consented or not. We are therefore unable to uphold the objections to the validity of the consent given under Ex. 11.

4. A more serious objection is as to the absence of the plaintiff's consent because he was the nearest reversioner. The evidence on this matter stands this way. A letter was undoubtedly sent by the widow to the plaintiff on 10th March 1925 (Ex. C); and it would appear to have been received by the plaintiff on 13th March. Though both parties are residing in the same village, in fact in opposite houses, it is the plaintiff's case that he never said anything to the widow about that matter, though it is the widow's case that the plaintiff had orally expressed his consent to her adopting. On 28th May 1925, the widow sent another letter referring to her letter of 10th March 1925 and asking for the execution of a proper deed of authority to adopt within four days of the receipt of the notice. She goes on to add:

If, as before, you delay and keep quiet, I shall treat it as an indication of your consent and shall adopt the said boy Lakshminarayana (defendant 47).

5. The defendants suggested that the plaintiff had knowledge of this letter before he left the village, but the learned Judge has not accepted that contention of theirs. We are willing to proceed on the assumption that the plaintiff did not know of this letter having been sent. It is his evidence that he left the village before the receipt of this letter, because he had to be absent in connection with his daughter's nuptials. It happens that he writes Ex. 5 dating it as on 4th June 1925 and purporting to write it in his native village Choragudi. It is addressed to the widow and runs in the following terms:

I have gone through the letter you wrote to me. It does not appear that you have a religious bent of mind and so any arrangement you might make as regards the property will not be valid in law.

6. It is clear from the envelope in which this letter was sent that it was posted not at Choragudi but in another village on the other side of the river. There appears to be a delivery of letters in the village only once a week; the defendants insist that Ex. 5 was delivered to the widow only on 13th June and there is no proof to the contrary. The evidence is not very satisfactory as to why this letter came to be written at all on 4th June and much less why it purported to be written at Choragudi but posted in the other place. The plaintiffs story is that his son-in-law happened to come to Choragudi on the 4th when the plaintiff mentioned to him about Ex. C and the son-in-law advised him to reply in the terms contained in Ex. 5. One cannot get over a suspicion that there must be more behind Ex. 5, though there may not be proof positive that Ex. 4 was seen by the plaintiff before writing Ex. 5. There is a possibility that being in the village the plaintiff might have come to know of some such thing brewing and Ex. 5 might be the result. We are however willing to deal with the case on the footing that Ex. 5 is only a reply to Ex. C. The plaintiff, in his evidence as a witness in the case, has not very much improved upon the reasons for his withholding assent to the adoption beyond what he stated in Ex. 5. Pressed to explain what he meant by the expression, absence of Paramarthagnanam in Ex. 5, he would only say that he meant that the widow was merely actuated by an intention to defeat the reversioners. It is curious that the explanation which has now been pressed before us, namely that the widow's idea of adoption was only the result of the disputes between herself and defendant 1, was not referred to in Ex. 5. Nor does the plaintiff say that that is what he meant to convey by Ex.5.

7. The result of the above evidence is that the plaintiff was undoubtedly consulted by the widow, but either he evaded giving an answer or led the widow to believe that he had no objection. If either of these inferences is correct, it cannot be seriously maintained that the widow was not justified in making the adoption on the strength of the consent given by the more distant sapindas. Even if we should take it that the plaintiff had refused his consent, the plaintiff's position cannot be stronger than if Ex. 5 had reached the widow before the adoption was made. In view of the terms of Ex. 5 and the explanation given by the plaintiff in the witness-box as to what his reasons were, we are unable to hold that the refusal was for justifiable or proper reasons which should actuate a sapinda when he is applied to for consent for an adoption to be made by another sapinda's widow. As the matter has been set at rest by the recent decision of the Privy Council in Krishnayya Rao v. Surya Rao Bahadur Garu 1935 69 MLJ 388, we need not canvass the earlier cases. That same case is also authority for the view that the only person whose motive requires to be canvassed in such cases is the sapinda who either gives his consent or withholds his consent and not the widow. This was expressed in strong terms by Jackson, J., in Murhari Brahma Sastri v. Sumitramma 1934 57 Mad 411 . The learned Judge said that if an adoption is regarded as a form of birth, the logical conclusion would seem to be that the widow's motive in making an adoption is no more material than a wife's motive in having a baby. The learned Judge however thought that some of the decisions of this Court tended the other way; but there could hardly be much force in that argument after the decision of the Privy Council.

8. Taking it however that a proved case of a corrupt bargain or a conspiracy between the widow and the consenting sapinda may be a sufficient justification for invalidating an adoption, we see no such proof of corruption or conspiracy in the present case. It has been pressed upon us that the widow did not think of making an adoption between 1886 and 1925. That is accounted for by the fact that she had a daughter and afterwards a daughter's son and as long as they were alive it was hardly likely that any Hindu widow would have thought of an adoption. It is only on the death of the daughter's son in 1923 that the question of adoption would legitimately have occurred to the widow. It is then said that by various transactions of the widow, nearly all the husband's properties had passed away from the widow and into the possession of defendant 1 before 1925, and it is only in consequence of disputes between the widow and defendant 1, whereby the widow was foiled in her attempts to get some property from defendant 1, that the widow made the adoption. Assuming this to be true, we do not see that that will bring the case within the doctrine of corrupt motive as understood in this class of cases. The mere allegation in Ex. 5 that the widow was not acting from a spiritual motive cannot certainly be taken to be a justifiable reason for refusal of consent by the plaintiff. An allegation to the same effect was found in the sapinda's letter that was in question before the Privy Council in the case in Krishnayya Rao v. Surya Rao Bahadur Garu 1935 69 ML J 388; the letter there began with the words 'I have come to know that you are not adopting with an honest purpose either for the spiritual salvation of your husband or for the perpetuation of his line.' Their Lordships of the Privy Council did not take this seriously at all as an argument in justification of the refusal of consent.

9. In these circumstances we agree with the learned Judge that the adoption of defendant 47 was valid in law, though not exactly for the same reasons as are given in his judgment. The appeal is accordingly dismissed with costs of defendant 47 who is respondent 45.

10. There is a memorandum of objections by defendants 1 to 3, which raises a question as to whether the widow had made a surrender in favour of her daughter or daughter's son so as to make the daughter's son, the stock of descent. Some questions have also been raised as to the title to certain items. But in the view that we have taken that the plaintiff's suit must fail, and as we are told that there is another litigation pending in the lower Court between the adopted son and defendants 1 to 3, we think it unnecessary to express any opinion upon these questions. We are not to be understood as affirming the lower Court's findings on these points. They are left open. 'With these remarks we dismiss the memorandum of objections but make no order as to costs.